Fenton v. Lord

• Decision Date: 10 March 1880
• Citation: 128 Mass. 466
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Hepsebeth Fenton v. Thomas Lord & others

128 Mass. 466

Hepsebeth Fenton v. Thomas Lord & others

Supreme Court of Massachusetts

March 10, 1880

[Syllabus Material]

Suffolk. Contract against Thomas Lord, Horace L. Cilley, and Martin W. Stimson. Writ dated July 23, 1878, returnable to the Superior Court.

The plaintiff in her declaration alleged that, on July 7, 1873 she executed and delivered to the defendants a deed, for the consideration as therein expressed of $ 25,000, of certain land in Boston, (being the same which had been conveyed to her on May 17, 1873, by George W. Torrey,) in which deed it was stipulated that "this conveyance is made subject to a mortgage for $ 16,400 given by said Hepsebeth to said Torrey, dated May 17, 1873, and recorded with Suffolk deeds, lib. 1159, fol. 213, which mortgage the said grantees are to assume and pay, the said mortgage forming part of the above-named consideration;" that the defendants accepted this deed, and entered into possession of the land under the same, and thereby became bound and promised to pay the mortgage debt, but had not done so, although the same has long since become due and payable, and they had been requested to pay it; and that the defendants owed the plaintiff the sum of $ 16,400 and interest.

The defendant Lord demurred to the declaration as insufficient in law to support the action. The Superior Court overruled the demurrer, and gave judgment thereon against the defendant Lord for $ 5775.80; and he appealed to this court.

The other defendants answered, denying all the allegations in the declaration, and setting up that, on February 15, 1879, the land was sold by public auction pursuant to a power contained in the mortgage to Torrey, and that at such sale the plaintiff became the purchaser for the sum of $ 11,600 and the additional sum of $ 196.12 for outstanding taxes, and signed and delivered to the auctioneer a contract to purchase the land at that price, and to pay $ 500 thereof immediately and the balance within ten days afterwards, but had paid only $ 375, and had refused to complete the purchase and fulfil her contract; and that the defendants, if previously liable, were thereupon released from the liability charged against them in the declaration.

At the trial upon this answer, before Aldrich, J., without a jury it appeared that the deed to the defendants was executed by the plaintiff and her husband; began as follows: "Know all men by these presents that we, Thomas W. Fenton and Hepsebeth Fenton his wife in her right, of Medford in the county of Middlesex and Commonwealth of Massachusetts, in consideration of twenty-five thousand dollars to said Hepsebeth paid by Thomas Lord, Horace L. Cilley and Martin W. Stimson, all of Boston in the county of Suffolk and said Commonwealth, the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell and convey unto the said Thomas Lord, Horace L. Cilley and Martin W. Stimson, in the proportions following, to wit, to the said Thomas Lord and his heirs and assigns one undivided half part, and to the said Horace L. Cilley and Martin W. Stimson and their heirs and assigns one undivided half part of a certain parcel of land;" contained a description of the land; the stipulations set forth in the declaration; an habendum one undivided half part to Lord, his heirs and assigns, and the other undivided half part to Cilley and Stimson, their heirs and assigns; and covenants of both grantors that the plaintiff was seised in fee, that the premises were free from incumbrances, that the grantors had good right to convey, and of general warranty except against the mortgage aforesaid; and concluded as follows: "In witness whereof we the said ...